Horrible result with lack of legal representation in court

Published on June 09, 2015 / ICBC Claims | Personal Injury Trial

Is a personal injury claim one that can be pursued in court without a lawyer?

In the April 30, 2015, decision in Ducharme v. Badler, 2015 BCSC 940, Madam Justice Fitzpatrick considers the cost consequences for a plaintiff who was hampered by self representation, failing to marshal the appropriate medical evidence required to prove her claim. Although Justice Fitzpatrick recognized the shortcomings of the plaintiff, she refused to ignore the fact that there had been an offer that should reasonably have been accepted before trial, awarding costs to the defendant, and resulting in devastating financial consequences for the plaintiff:

Conclusion and Result

[40] While I have some sympathy for Ms. Ducharme’s position in that she has been hampered by her self-representation in these actions for some time, that fact cannot give rise to a result not founded on the evidence.

[41] Ms. Ducharme is awarded the sum of $1,000 in respect of the January 2010 accident and $500 in respect of the September 2010 accident. In my view, this reflects the minor nature of these proven injuries or the aggravation of injuries: see Milanovic v. Bokenfohr, 2003 BCPC 316; Mokanasingham v. ICBC, 2009 BCPC 251; Vuong v. Wong, 2007 BCPC 172; Seto v. Ng, 2009 BCPC 218.

[42] I will now address the matter of costs. Ms. Ducharme, do you have a submission on costs?

[43] LAURA DUCHARME: No. No, Your Honour.

[44] THE COURT: Mr. Spinks?

[DEFENCE SUBMISSIONS RE COSTS]

[45] THE COURT: In the ordinary course, Ms. Ducharme would have been awarded her costs in both actions. In accordance with Rule 15-1(15)(b), the costs of this two day trial would be $9,500 plus disbursements. However, defence counsel has referred me to previously delivered offers to settle, which I have the discretion to consider: see Rule 15-1(16).

[46] These actions were commenced in December 2011 and July 2012. Mr. Spinks has outlined the settlement offers that have been extant for some time. In January 2012, there was an offer in the amount of $21,000; and, in April 2014, there was an offer in the amount of $40,000. Clearly, those offers substantially exceed the result in this trial and, in my view, should reasonably have been accepted by Ms. Ducharme, particularly when it became apparent that she could not or would not marshal the medical evidence she needed in proving her claims. No submissions were made on the relative financial circumstances of the parties.

[47] I accept the position of the defence in respect of the award of costs. In the circumstances, I am satisfied that a double costs award is appropriate: Gichuru v. Pallai, 2013 BCCA 60. Accordingly, costs are awarded in favour of the defendants in the sum of $19,000 plus reasonable disbursements.

Paul began practicing law in 1995 in a general litigation practice. Of the various areas of litigation, he became most drawn to and passionate about pursuing fair compensation for personal injury victims, which has gradually became his exclusive area of practice. Paul's practice is restricted to acting only for the injured victim, never for ICBC nor for other insurance companies.